This may be the author’s version of a work that was submitted/accepted for publication in the following source: Rimmer, Matthew (2003) Precious images: Copyright law and television broadcasts. Incite, 24(11), p. 10, 2003. [Article] This file was downloaded from: https://eprints.qut.edu.au/86808/ c Copyright 2003 Incite This work is covered by copyright. Unless the document is being made available under a Creative Commons Licence, you must assume that re-use is limited to personal use and that permission from the copyright owner must be obtained for all other uses. If the docu- ment is available under a Creative Commons License (or other specified license) then refer to the Licence for details of permitted re-use. It is a condition of access that users recog- nise and abide by the legal requirements associated with these rights. If you believe that this work infringes copyright please provide details by email to [email protected] Notice: Please note that this document may not be the Version of Record (i.e. published version) of the work. Author manuscript versions (as Sub- mitted for peer review or as Accepted for publication after peer review) can be identified by an absence of publisher branding and/or typeset appear- ance. If there is any doubt, please refer to the published source. https:// www.alia.org.au/ publications-and-news/ incite Precious images: copyright law and television broadcasts O ver the last several years, Austral­ broadcast could be defined as a television ian media magnate Kerry Packer program, or where applicable, a segment has sought to maximise the value of a program [http://www.austlii.edu.au/au/ of the intellectual property assets of the tel­ cases/cth/federal_ct/2001/108.html], His evision station Channel Nine. He has made Honour found that Network Ten was not a concerted effort to expand the scope guilty of copyright infringement, because of copyright protection over television it had not reproduced a substantial part of broadcasts screened. The television station the television broadcasts of Channel Nine. Channel Nine has taken a number of legal In the alternative, Justice Conti considered actions against its rivals and competitors whether Network Ten could raise the de­ — including the Australian Broadcast­ fence of fair dealing — for the purposes ing Corporation and Network Ten. It has of reporting the news, and research and alleged that the broadcasters have used criticism. His Honour held that eleven Dr Matthew Rimmer substantial parts of copyrighted television of the twenty segments would have been ALIA copyright and broadcasts without their permission. protected under the defence of fair deal­ intellectual property In Nine Network Australia Pty Ltd v ing. However, his Honour found that nine policy and advisory group Australian Broadcasting Corporation (1 999) excerpts were not within the scope of the 48 IPR 333, Channel Nine brought a legal defence of fair dealing, because they were action against the Australian Broadcasting not for the purposes of reporting the news, Corporation in an effort to claim copyright or for research and criticism. ownership over the millennium fireworks In TCN Channel Nine Pty Ltd v Net­ held by the City of Sydney [http://www. work Ten Pty Ltd (2002) 55 IPR 112, the austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/ Full Federal Court upheld an appeal by federal%5fct/1 999/1864.html], Justice Hill Channel Nine [http://www.austlii.edu.au/ doubted whether copyright could subsist in cgi-bin/disp.pl/au/cases/cth/FCAFC/2002/ subject matter as ephemeral as a fireworks 146.html], Surprisingly, Justices Hely, Fin­ display. His Honour also maintained that, kelstein and Sundberg held that a televi­ in any case, the ABC would be protected sion broadcast could be defined as a single by the defence of fair dealing — both for visual image — rather than a whole televi­ the purposes of reporting the news, and for sion program. As a result, their Honours criticism and review. The response to the found that the videos of T h e P a n e l seg­ decision was twofold: first of all, Channel ments reproduced a substantial part of the Nine started using footage from the ABC television broadcast. The Full Federal Court and New Zealand TV coverage of the mil­ also took a narrower reading of the defence lennium without permission, [Paul Barry. of fair dealing. The majority found that the The Fireworks Fight', Media Watch, ABC, primary judge was in error in finding that 7 February 2000, http://www.abc.net.au/ the defence of fair dealing was made out mediawatch/transcripts/s98367.htm] and with respect to a number of excerpts — in­ second the City of Sydney trademarked the cluding from A Current Affair program, the word 'Eternity' even though its claim to the Allan Border Medal Dinner program, and symbol was doubtful. [Linda Morris. 'Eter­ the Today Show. However, the Full Court nity has limits, Sartor Decrees', T he S y d n e y found that the primary judge was in error Morning Herald, 12 January 2001, p1.] in finding that the defence of fair dealing In 2001, Channel Nine brought a legal was not made out on the 'Sim ply the best' action against Network Ten for copyright program, as the criticism by T h e P a n e l of infringement. Ten re-broadcast twenty the show's format was justified. In all, the segments from episodes of certain Nine Full Court found that Network Ten had television programs in Ten's entertainment used eleven excerpts unlawfully. program T h e P a n e l. For instance, there was Network Ten were granted special leave Surprisingly, an excerpt from the Midday Show of Prime by the High Court to appeal the decision Justices Hely, Minister John Howard singing happy birth­ of the Full Federal Court. The High Court day in honour of Australian cricketing leg­ recently heard argument over the matter on Finkelstein and end Don Bradman. Nine alleged the seg­ 7 September 2003 in Canberra. Network Sandberg held ments constituted the re-broadcast by Ten Ten did not fare well. The barrister for the that a television without the license of Nine of a substantial television network argued that a television part of each television program, and thus broadcast should be defined as a whole broadcast could an infringement of Nine's copyright in the day. Justice G um m ow said that this was be defined as a television broadcasts under the C o p y rig h t a greedy submission. The lawyer alterna­ A c t 1968 (Cth). single visual tively argued that a television broadcast In TCN Channel Nine v Network should be defined as a television program. im age... T en (2001) 50 IPR 335, Justice Conti of Network Ten refused to make arguments the Federal Court held that a television about fair dealing, because they wanted 10 / / / C ’ / £ * ' November 2003 to merely reinstate the decision of Justice commercial value of television broadcasts. Conti. The High Court was notably frus­ He also adopted the language of Channel trated by this reluctance to deal with fair Nine that Network Ten were 'pilfering' its dealing. Channel Nine maintained that in­ images. Chief Justice Gleeson and Justice dividual images were of great commercial Heydon were absent from the court and value — mentioning such precious images took no part in the proceedings. as the sentencing of the Bali Bombers, the The High Court has reserved its judg­ S11 Twin Towers attack, and the Concorde ment in Network Ten Pty Ltd v TCN Chan­ crash. They contended that a television Whatever the outcome, broadcast should be defined as a single nel Nine Pty Ltd. visual image — rather than in terms of a the decision will have a great impact upon television program or unit. the operation of the television broadcasting industry. Channel Nine has threatened to Justice Gummow and Justice Hayne take further legal action against its rivals were the most sceptical of Channel Nine's Channel Seven and Network Ten. In The argument. They suggested that the notion of an 'image' was merely a metaphor or Sydney Morning Herald, Peter Meakin said an analogy for the technical process of the that the company would consider action transmission of the television broadcast. against other television programs: Justice Gummow and Justice Hayne also The Panel are smart people and will questioned why broadcasts should receive work out the implications. It will The judgment a 'deluxe' treatment — as opposed to have far more impact for Sports- works and other subject matter — in terms watch and Sports Tonight. They're will have wider of copyright infringement. Justice Kirby and going to have to hire some people implications for Acting Chief Justice McHugh recognised and do some work themselves that there were important and significant the definition of instead of thieving material from freedom of communication issues at stake. others. [Sarah Crichton. 'Nine has copyright work Nonetheless they reiterated that the statute last laugh at The Panel' The Sydney and other jabject gave quite a specific command, and they Morning Herald, 23 May 2002], could not see how they could ignore the matter, the defence suggestion that a television broadcast was The judgment will have wider implica­ affair dealing, tions for the definition of copyright work defined as an image. These two judges and the freedom of seemed that would have been much hap­ and other subject matter, the defence of fair pier to deal with the matter in terms of dealing, and the freedom of communica­ communication... fair dealing. Justice Callinan stressed the tion.